Heather H. v. Nw. Indep. Sch. Dist.

529 F.Supp.3d 636

HEATHER H., Individually and on Behalf of Minor Child, P.H., an Individual With a Disability, et al., Plaintiffs,

v.NORTHWEST INDEPENDENT SCHOOL DISTRICT, Defendant.

CIVIL ACTION NO. 4:19-CV-00823-RWS

United States District Court, E.D. Texas, Sherman Division.

Signed March 26, 2021

Elizabeth Ann Angelone, Devin Alan Fletcher, Cuddy Law Firm, Austin, TX, for Plaintiffs.

Meredith Prykryl Walker, Nona C. Matthews, Walsh Gallegos Trevino Russo & Kyle PC, Irving, TX, for Defendant.

ORDER

ROBERT W. SCHROEDER III, UNITED STATES DISTRICT JUDGE

Plaintiffs Heather H. and John H., both individually and on behalf of minor child, P.H., an individual with a disability, filed this lawsuit asserting a claim against Northwest Independent School District under the Individuals with Disabilities Education Act ("IDEA"). Docket No. 1. Plaintiffs and Northwest ISD each moved for judgment on the administrative record regarding the IDEA claim. Docket Nos. 28, 29. Plaintiffs also filed an Opposed Motion to Supplement the Administrative Record. Docket No. 20. The Magistrate Judge recommends (1) denying without prejudice Plaintiffs’ Opposed Motion to Supplement the Administrative Record; (2) denying Plaintiffs’ Motion for Judgment on the Administrative Record; (3) granting Northwest ISD's Motion for Judgment on the Administrative Record; and (4) dismissing with prejudice Plaintiffs’ claims. Docket No. 42 ("Report and Recommendation"). Plaintiffs filed objections to the Report and Recommendation. Docket No. 43. Northwest ISD filed a response. Docket No. 44. The Court conducted a de novo review of the Magistrate Judge's findings and conclusions.

BACKGROUND

Plaintiffs filed their Complaint in the Eastern District of Texas on November 13, 2019. Docket No. 1. Plaintiffs are challenging the Special Education Hearing Officer's ("SEHO") determination that Northwest ISD complied with the IDEA while P.H. was enrolled at Northwest ISD. Id. at 12–13. Plaintiffs’ Motion for Judgment on the Administrative Record asks the Court to reverse the SEHO's decision and reimburse them for the cost of a privately obtained Independent Educational Evaluation ("IEE"). Docket No. 28 at 28. They also seek an award of attorneys’ fees and costs. Docket No. 1 at 13. Northwest ISD filed a competing Motion for Judgment on the Administrative Record, asking the Court to affirm the SEHO's decision and dismiss with prejudice Plaintiffs’ suit. Docket No. 29 at 22–23. Plaintiffs also filed an Opposed Motion to Supplement the Administrative Record, requesting admission of certain documentation for the purpose of attorneys’ fees and costs if Plaintiffs prevail. Docket No. 20.

REPORT AND RECOMMENDATION

On February 25, 2021, the Magistrate Judge recommended the Court deny Plaintiffs’ Motion for Judgment on the Administrative Record and Opposed Motion to Supplement the Administrative Record but grant Northwest ISD's Motion for Judgment on the Administrative Record. Docket No. 42. Therein, the Magistrate Judge details how Plaintiffs failed to meet their burden of establishing the SEHO erred. Id. at 22–35.

OBJECTIONS

After entry of the report, Plaintiffs timely filed objections. Docket No. 43. Broadly, Plaintiffs raise four grounds: (1) the Magistrate Judge improperly applied the IDEA standard, excessively deferring to both the SEHO and teachers’ "blind assertions"; (2) the Magistrate Judge misuses a statement of law regarding a "better system"; (3) the Magistrate Judge erred by reading "suspected disability" as not including the "child with a disability" eligibility categories; and (4) the Magistrate Judge incorrectly concluded there was no reason to suspect P.H. might be a student with an emotional disturbance ("ED"). Id. at 4–15.

DE NOVO REVIEW

12 A district court reviews the SEHO's determination "virtually de novo." Lisa M. v. Leander Indep. Sch. Dist., 924 F.3d 205, 213 (5th Cir. 2019) (quoting Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993) ). This means that "although the district court is to ‘give due weight to the hearing officer's findings, the court must ultimately reach an independent decision based on a preponderance of the evidence.’ " Id. (quoting Dallas Indep. Sch. Dist. v. Woody, 865 F.3d 303, 309 (5th Cir. 2017) ) (alteration omitted); see also 20 U.S.C. § 1415(i)(2)(c)(iii). But this "provision that a reviewing court base its decision on the ‘preponderance of the evidence’ is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982) ; see also E.M. v. Lewisville Indep. Sch. Dist., No. 4:15-CV-00564, 2018 WL 1510668, at *5 (E.D. Tex. Mar. 27, 2018), aff'd sub nom. E.M. by S.M. v. Lewisville Indep. Sch. Dist., 763 F. App'x 361 (5th Cir. 2019).

I. First Objection

Plaintiffs first object that the Magistrate Judge improperly applied the IDEA standard of review. Docket No. 43 at 4–8. Specifically, Plaintiffs argue the Magistrate Judge fails to hold Northwest ISD to the correct "modified de novo review" standard, affording excessive deference to the SEHO decision, because (1) the Magistrate Judge deferred to "teachers’ bare and blind assertions ... despite documentary evidence to the contrary"; and (2) the Magistrate Judge failed to hold Northwest ISD to its burden to prove the Full Individual and Initial Evaluation ("FIE") "was appropriate and that the IEE was not appropriate." Id. Northwest ISD responds that the Magistrate Judge applied the correct "virtually de novo" standard, as (1) Plaintiffs point to out-of-context portions of the Report and Recommendation, including the section discussing a professional disagreement; and (2) Plaintiffs "blatantly misrepresent the IDEA's implementing regulations" regarding the appropriateness of the FIE and IEE. Docket No. 44 at 2–5.

In advancing the Magistrate Judge's purported reliance on "teachers’ bare and blind assertions, despite documentary evidence to the contrary," Plaintiffs argue the Magistrate Judge dismissed the "issue of the FIE's deficiencies as ‘nothing more than a professional disagreement.’ " Docket No. 42 at 28–29. But such assertion takes the statement out-of-context. The Magistrate Judge's reference is narrow: in addressing each of the Plaintiffs’ arguments that the FIE lacked sufficient data, the Magistrate Judge noted that the record reflects a professional disagreement as to whether administering the CARS-2 over the ADOS-2 was most appropriate for P.H. at that time. AR 237–38, 959–60, 962, 979. And reexamining that point, the Court agrees that although Plaintiffs argue Northwest ISD should have administered the ADOS-2 again, the manual states that the ADOS-2 should not be administered within one year of the original administration date. AR 706–07. The evaluation Plaintiffs point to was conducted approximately eight months after the original ADOS-2 was administered. AR 198–99, 207, 209, 448. The Magistrate Judge appropriately found this specific argument unavailing.

In further support of their argument that the Magistrate Judge provided excessive deference, Plaintiffs argue Northwest ISD, "as the petitioning party first had the burden to prove that it's [sic] FIE was appropriate and that the [privately funded] IEE was not appropriate"—a standard the Report failed to hold Northwest ISD to. Docket No. 43 at 7 (emphasis added). Specifically, Plaintiffs complain about the Magistrate Judge's conclusion that "the SEHO did not err by failing to address the appropriateness of the IEE because there is no such requirement under the IDEA." Docket No. 42 at 34.

The applicable regulation states in relevant part:

If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either—

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

34 C.F.R. § 300.502(b)(2) (emphasis added). Here, Northwest ISD requested a hearing to show that its evaluation was appropriate. As the Magistrate Judge noted, the regulation includes "or" (making the regulation disjunctive) rather than "and." Thus, the plain language does not require Northwest ISD to prove the FIE was appropriate and that the IEE was not appropriate. The case Plaintiffs cite only further supports this conclusion. See Cobb Cty. Sch. Dist. v. D.B. ex rel. G.S.B., No. 1:14-CV-02794-RWS, 2015 WL 5691136, at *6 (N.D. Ga. Sept. 28, 2015) ("At such a due process hearing [under 34 C.F.R. § 300.502(b)(2)(i) ], the school district has the burden of proof to show that its assessment is adequate.").

Incorporating by reference their Motion for Judgment on the Administrative Record, Plaintiffs next urge the Magistrate Judge "relied upon broad, sweeping, unsupported opinions of NWISD teachers" rather than consider the "numerous extrinsic documentary examples of P.H.’s behaviors which indicted abnormal responses[.]" Docket No. 43 at 7–8. Northwest ISD, in response, asserts the Magistrate Judge appropriately addressed Plaintiffs’ arguments, including by noting certain of the evidence upon which Plaintiffs relies postdates completion of the FIE. Docket No. 44 at 5–6.

To this point, Plaintiffs’ briefing before the Magistrate Judge points to P.H.’s "tardy log" and the Section 504 team's findings. Docket No. 28 at 18–19. But P.H. was only late on two occasions that were, at best, related to anxiety and before Northwest ISD completed the November 2018 FIE. AR 607–19. The Section 504 team's findings from December 2018 were one month after the November 2018 FIE. AR 511, 931–33. And the...